The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1686 of 2023 1. M/s V-Mart Retail Ltd., registered office at 610-611, Guru Ram Dass Nagar, Main Market Opposite S.B.I. Bank, Laxmi Nagar, New Delhi-110092 and Corporate Office at Plot No.862, Udyog Vihar Industrial Area, Phase-V, P.O.+P.S.-Udyog Vihar, Dist.-Gurgaon- 122016 State of Haryana, represented by Aasish Gupta, aged about 29 years, s/o Dewakar Prasad, r/o Shop No.11, Sector 3 Market HEC, P.O. & P.S.-Dhurwa, Dist.-Ranchi 2. Lalit Agarwal, aged about 55 years, s/o Shri Madan Gopal Agarwal Managing Director of M/s V-Mart Retail Ltd., Presides at Corporate Office at Plot No.862, Udyog Vihar Industrial Area, Phase-V, Gurgaon, P.O.+P.S.-Udyog Vihar, Dist.-Gurugram-State of Haryana .... Petitioners Versus 1. The State of Jharkhand 2. M/s Swastik Build Worth Pvt. Ltd., a company having its registered office at 83, Tank Road, Sakchi, P.O. & P.S.-Sakchi, Town Jamshedpur, District East Singhbhum, represented through one of
Legal Reasoning
of a coordinate Bench of this Court in Cr.M.P. No. 3245 of 2016 dated 01.02.2024 wherein in the facts of that case where an agreement was entered into between the parties of that case in respect of a vehicle to be taken on rent from the owner by the accused persons of the case but the accused persons did not return the vehicle nor paid the rent, the coordinate Bench of this Court quashed the FIR of that case. Hence, it is submitted that order dated 31.01.2023 passed by the learned Chief Judicial Magistrate, Jamshedpur in Complaint Case No. 2140 of 2019 be quashed and set aside. 12. Learned Special Public Prosecutor and the learned counsel for the opposite party no.2 on the other hand opposes the prayer for quashing the order dated 31.01.2023 passed by the learned Chief Judicial Magistrate, Jamshedpur in Complaint Case No. 2140 of 2019 at this nascent stage. Learned Spl. P.P. fairly submits that the complainant could have filed a suit for realization of money as the dispute between the parties is having a civil consequence also. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 13. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that as has been held by the Hon’ble Supreme Court of India in the Cr.M.P. No.1686 of 2023 6 case of Binod Kumar & Ors. vs. State of Bihar & Anr. (supra) mere retention of money by the accused persons will not amount to criminal breach of trust. Moreover in order to constitute the offence punishable under Section 406 of Indian Penal Code additionally it has to be shown that accused persons dishonestly disposed of the same in some way or dishonestly retained the same. 14. Now coming to the facts of the case, the petitioners occupied the building of the complainant consequent upon the agreement entered into between them for a certain amount with a clause of enhancing the rent to be paid annually. Subsequently, admittedly, there was a novation of the contract and the rental amount was reduced. The undisputed fact remains that the petitioners have paid the reduced rental amount. 15. Under such circumstances, this Court is of the considered view that even if the allegations made against the petitioners are considered to be true, the same in the absence of any allegation of dishonest misappropriation of property or conversion of the property to their own use or dishonestly using or disposing of the property in violation of any direction of law prescribing the mode in which such trust is to be discharged; even if the allegations made in the complaint, statement of the complainant on solemn affirmation and the statement of the inquiry witnesses are considered to be true in its entirety; still the offence punishable under Section 406/34 of Indian Penal Code is not made out against the petitioners. 16. In view of the discussions made above, this Court is of the considered view that continuation of the criminal proceeding will Cr.M.P. No.1686 of 2023 7 amount to abuse of process of law and this is a fit case where the order dated 31.01.2023 passed by the learned Chief Judicial Magistrate, Jamshedpur in Complaint Case No. 2140 of 2019 be quashed and set aside. 17. 18. 19. Accordingly, the order dated 31.01.2023 passed by the learned Chief Judicial Magistrate, Jamshedpur in Complaint Case No. 2140 of 2019 is quashed and set aside.
Arguments
its Director Mr. Ashish Ranpara, s/o late Bhogilal Ranpara, registered office at 83, Tank Road, Sakchi, P.O.+P.S.-Sakchi, Town Jamshedpur, Dist.-East Singhbhum …. Opp. Parties P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners For the State For O.P. No.2 : Mr. Srijit Choudhary, Advocate : Ms. Tanya Rai, Advocate : Mr. Sparsh Rai, Advocate : Mrs. Priya Shrestha, Spl. P.P. : Mr. Anurag Kashyap, Advocate ….. Cr.M.P. No.1686 of 2023 1 By the Court:- 1. 2. Heard the parties. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the order dated 31.01.2023 passed in Complaint Case No. 2140 of 2019 by which the learned Chief Judicial Magistrate, Jamshedpur has taken cognizance inter alia against the petitioners for the offence punishable under Section 406/34 of Indian Penal Code and issued process in terms of Section 204 Cr.P.C. 3. The brief fact of the case is that the petitioner no.1 being the company registered under the Companies Act and the petitioner no.2 being the Managing Director of the company entered into a rent agreement with the complainant and took his building on monthly rent for the monthly amount agreed between them. Subsequently, there was a novation of the contract between the complainant and the petitioners and the monthly amount was reduced. After occupying the building of the complainant for considerable period of time, the petitioners vacated the said building on 12.04.2019. The complainant adjusted the difference amount from the security deposit but some more amounts remained as per the original agreement which in-spite of sending legal notice the petitioners have not paid. 4. The learned Chief Judicial Magistrate, Jamshedpur taking into consideration the complaint, statement of the complainant on solemn affirmation and the statement of the inquiry witnesses have taken Cr.M.P. No.1686 of 2023 2 cognizance for the offence punishable under Section 406/34 of Indian Penal Code and issued process in terms of Section 204 Cr.P.C. 5. It is submitted by the learned counsel for the petitioners that admittedly, the petitioners on 16.12.2017 through authorized signatory sent notice for termination of the lease deed dated 31.03.2015 in respect of the building belonging to the complainant but the complainant-opposite party no.2 discussed and requested the petitioner no.1 to consider revised monthly rental of Rs.3,30,000/- and to continue possession of the premises and as per the said renewed agreement, the monthly rental of Rs.3,30,000/- being paid by the petitioners and no money is due and payable to the complainant. It is then submitted by the learned counsel for the petitioners that the petitioners have replied to the notice dated 14.05.2019 issued by the complainant by their notice dated 28.05.2019 stating to withdraw the notice of the complainant. It is further submitted by the learned counsel for the petitioners that admittedly there was arbitration clause in the agreement entered into between the parties to resolve any dispute or difference between the parties to the agreement. It is further submitted by the learned counsel for the petitioners that the dispute between the parties is purely a dispute of civil nature and the complainant has converted the same to a criminal dispute by misleading. It is next submitted by the learned counsel for the petitioners that even if the allegations made are considered to be true in its entirety still no offence of criminal breach of trust is made out against the petitioners; in the absence of any Cr.M.P. No.1686 of 2023 3 allegation of any dishonest misappropriation of any property entrusted to the petitioners. 6. Relying upon the judgment of Hon’ble Supreme Court of India in the case of Binod Kumar & Ors. vs. State of Bihar & Anr. reported in 2014 AIR SCW 6310, paragraph no.18 of which reads as under:- “18. xxxx xxxx xxxx xxxx To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust.” It is submitted by the learned counsel for the petitioners that in the absence of any allegation of the petitioners dishonestly disposing of any property in some way or dishonestly retaining the same, the mere allegation that the petitioners did not pay the money to the complainant does not amount to criminal breach of trust. 7. Learned counsel for the petitioners next relied upon the judgment of Hon’ble Supreme Court of India in the case of Neetu Singh & Ors. vs. State of U.P. reported in 2022 LiveLaw (SC) 281, and submits that failure to pay rent may have civil consequences but it is not a penal offence under the Indian Penal Code and mandatory legal requirements for the offence of cheating under Section 415 and that of misappropriation under Section 403 of Indian Penal Code being absent, the allegation do not constitute the offence punishable under Section 406 of Indian Penal Code. 8. Learned counsel for the petitioners next relied upon the judgment of Hon’ble Supreme Court of India in the case of M/s Indian Oil Cr.M.P. No.1686 of 2023 4 Corporation vs. M/s NEPC India Ltd. & Ors. reported in AIR 2006 SC 2780, paragraph no.17 of which reads as under:- “17 xxxx xxxx xxxx xxxx A careful reading of the section shows that a criminal breach of trust involves the following ingredients : (a) a person should have been entrusted with property, or entrusted with dominion over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. xxxx xxxx xxxx xxxx” And submitted that in the absence of essential ingredient to constitute the offence punishable under Section 406 of Indian Penal Code being dishonest misappropriation or conversion of the entrusted property to the own use of the accused or any allegation of dishonestly using or disposing of that property or willfully suffer any other person to do so; the offence punishable under section 406 of the Indian Penal Code is not made out against the petitioner. 9. It is next submitted by the learned counsel for the petitioners that even if the entire allegations made against the petitioners are treated to be true the still the same falls short from constituting the offence punishable under Section 406 of Indian Penal Code. 10. Learned counsel for the petitioners next relied upon the judgment of this Court in Cr.M.P. No. 3245 of 2021 dated 11.03.2024 wherein this Court relied upon the judgment of Hon’ble Supreme Court of India in the case of Binod Kumar & Ors. vs. State of Bihar (supra) and in that case the allegation against the accused of that case was Cr.M.P. No.1686 of 2023 5 that some of the devices for which money was taken by the accused persons of that case were not supplied and some devices were supplied, this Court in the facts of that case quashed the entire criminal proceeding. 11. Learned counsel for the petitioners next relied upon the judgment
Decision
In the result, this criminal miscellaneous petition is allowed. In view of the disposal of this criminal miscellaneous petition, interlocutory applications, if any, is disposed of being infructuous. High Court of Jharkhand, Ranchi Dated the 8th April, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) Cr.M.P. No.1686 of 2023 8